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27.3 Witness Credibility: Applicability To Defendant

    27.3.2 Prior Conviction Of Defendant

    27.3.2.1 Impeachment Of Defendant By Prior Conviction -- Cautionary/Limiting Instruction
    27.3.2.2 Prior Conviction of Defendant: Jury May Still Believe Defendant's Testimony
    27.3.2.3 Impeachment Of Defendant By Prior Conviction: Whether Cautionary Instruction Must Be Given Sua Sponte
    27.3.2.4 Impeachment Of Defendant By Prior Conviction -- Ineffective Counsel For Failure To Request Cautionary      Instruction
    27.3.2.5 Prior Convictions: Limited Purpose Instruction Required Even If Prior Conviction Is Offered By Defense For     Strategic Purposes
    27.3.2.6 Impeachment By Prior Conviction: Explanatory Instruction Regarding Defendant's Failure To Reveal The Conviction On Direct Examination
    27.3.2.7 Impeachment By Prior Conviction: Receipt Of Stolen Property Not Per Se Admissible
    27.3.2.8 Impeachment Of Defendant By Prior Conviction: Federal Circuit Model Instructions And Notes           

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RATIONALE: Due to the high degree of prejudice, a limiting instruction regarding the defendant's prior conviction may be appropriate.

POINTS AND AUTHORITIES: Evidence that the defendant has committed other crimes may be extremely prejudicial because it suggests to the jury that the defendant is a person of bad character and it further invites the jury to conclude that the defendant is guilty of the charged crime because he committed the prior crime in violation of his/her federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See People v. Anderson (CA 1978) 20 C3d 647, 651 [143 CR 883]; see also People v. Enos (CA 1973) 34 CA3d 25, 34 [109 CR 876]; People v. Albertson (CA 1944) 23 C2d 550, 577 [145 P2d 7].) Accordingly, a limiting instruction may be appropriate. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 41 [Defendant’s Testimony: Impeachment By Prior Conviction] p. 51 (1988); see also State v. McGee (WV 1976) 230 SE2d 832, 836-37 [failure to instruct was reversible error; later superseded by the holding that no prior convictions may be used for impeachment, except perjury and false swearing]; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West Group) pp. 27-13-14; O’Malley, Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 15.08 [The Defendant's Conviction Of A Felony] p. 429 (West, 5th ed. 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See generally, FORECITE National™ 27.3.2.8 [Impeachment Of Defendant By Prior Conviction:  Federal Circuit Model Instructions And Notes].

    You have been told that the defendant has previously been convicted of a felony. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much you will believe of the defendant's testimony in this trial. The fact that the defendant was found guilty of another crime does not mean that [he] [she] committed the charged crime, and you must not use [his] [her] guilt of the prior felony as proof of the crime charged in this case. You may find [him] [her] guilty of the charged crime only if the prosecution has proved beyond a reasonable doubt that [he] [she] committed it.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 41 [Defendant’s Testimony: Impeachment By Prior Conviction] (1988).]

    Do not consider any evidence of a defendant's prior conviction as evidence that [he] [she] is guilty of the charged offense.  You may only consider the prior conviction in evaluating the defendant's believability as a witness. 

[Source: FORECITE National™.]

    You have heard evidence that defendant has previously been convicted of _______. You may consider that evidence only as it may affect defendant's believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.6 [Impeachment, Prior conviction of Defendant] (2000).]

    You have heard evidence that the defendant has been convicted of a crime. You may consider this evidence only in deciding whether the defendant’s testimony is truthful in whole, in part, or not at all. You may not consider it for any other purpose. A conviction of another crime is not evidence of the defendant’s guilt of any crime for which the defendant is now charged.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.05 [Impeachment of Defendant - Convictions] (1999).]

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    27.3.2.2    Prior Conviction of Defendant: Jury May Still Believe Defendant's Testimony

RATIONALE: The jury may focus so heavily on the prior conviction of the defendant or other witness that it could lose sight of the fact that it is still free to decide that the testimony is truthful.

POINTS AND AUTHORITIES: Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 6:22 [Witnesses-Prior Convictions Or Immoral Acts–Defendants] (West, 1999).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.4; 5.1].

See generally, FORECITE National™ 27.3.2.8 [Impeachment Of Defendant By Prior Conviction:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See generally FORECITE National™ 4.3.4.2 [Waiver/Invited Error].

    See also FORECITE National™ 4.3.2.2 [Circumstances Where Cautionary/Limiting Instructions May Be Requires On Court's Own Motion].

    See also FORECITE National™ 26.5.3.12 [Uncharged Acts:  Does Court Have A Sua Sponte Duty To Give A Limiting Instruction?].

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PRACTICE NOTE: While there may be a question as to whether the trial court has a sua sponte duty to give a cautionary/limiting instruction regarding a prior conviction offered to impeach the testimony of a defendant (see FORECITE National™ 27.3.2.3 [Impeachment Of Defendant By Prior Conviction: Whether Cautionary Instruction Must Be Given Sua Sponte]), it is the duty of trial counsel to consider the necessity of such an instruction and request it if necessary. The failure of counsel to make such a request has been held to be ineffective assistance of counsel requiring reversal of the defendant's conviction. (See People v. Olano UNPUBLISHED, A076812, Opinion Bank # O-243, below.)

OPINION AVAILABLE: Click here. [Opinion Bank # O-243]; see also FORECITE National™ 27.3.2.5 [Prior Convictions: Limited Purpose Instruction Required Even If Prior Conviction Is Offered By Defense For Strategic Purposes].)

See generally, FORECITE National™ 27.3.2.8 [Impeachment Of Defendant By Prior Conviction:  Federal Circuit Model Instructions And Notes].

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    27.3.2.5    Prior Convictions: Limited Purpose Instruction Required Even If Prior Conviction Is Offered By Defense For Strategic Purposes

RATIONALE: Even if a prior conviction is offered by the defense to strategically mitigate its impact on the jury, the dangers are the same as when the prior is offered by the prosecution and a limited purpose instruction may still be required.

POINTS AND AUTHORITIES: There may be situations where, for strategic reasons, the defense will offer the defendant's prior conviction in order to mitigate the impact of having it offered by the prosecution. In such cases, an instruction on the limited use of the prior conviction must still be given upon request even though the conviction was actually introduced by the defense. (See King v. State (AL 1988) 521 So2d 1360, 1361; see also Romans v. Commonwealth (KY 1977) 547 SW2d 128, 130; Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.63 [Prejudicial Instructions] (Anderson, 4th ed. 1999).)

    See FORECITE National™ 27.3.2.1 [Impeachment Of Defendant By Prior Conviction -- Cautionary/Limiting Instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

CAVEAT: Issues regarding the admissibility of the defendant's prior conviction may be waived if the defendant preemptively admits the prior on direct examination. (Ohler v. United States (2000) 529 US 753 [120 SCt 1851, 1853-55;146 LEd2d 826]; see also Solemekum v. State (Md. Ct. Spec. App) 2002 Md. App. LEXIS 55 [defendant who preemptively introduces an allegedly inadmissible prior conviction in his direct testimony in order to ameliorate the "sting" of impeachment, waives his objection to the evidence he himself introduces; however, prosecution not entitled to introduce further inadmissible evidence on cross-examination].) 

See generally, FORECITE National™ 27.3.2.8 [Impeachment Of Defendant By Prior Conviction:  Federal Circuit Model Instructions And Notes].

    You [are about to hear] [have heard] evidence that the defendant (name) was previously convicted of [a] crime[s]. You may use that evidence only to help you decide whether to believe [his] [her] testimony and how much weight to give it. That evidence does not mean that [he] [she] committed the crime charged here, and you must not use that evidence as any proof of the crime charged in this case. [That evidence may not be used in any way at all in connection with the other defendant[s]].

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.16 [Defendant’s Testimony: Impeachment By Prior Conviction] (2000).]

    Do not consider any evidence of a defendant's prior conviction as evidence that [he] [she] is guilty of the charged offense.  You may only consider the prior conviction as to defendant's believability as a witness. 

[Source: FORECITE National™.]

    You have heard evidence that defendant has previously been convicted of _______. You may consider that evidence only as it may affect defendant's believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.6 [Impeachment, Prior conviction of Defendant] (2000).]

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RATIONALE: Without an explanatory instruction the jury may unfairly infer that the defendant was trying to hide his or her prior conviction.

POINTS AND AUTHORITIES: Ohler v. United States (2000) 529 US 753 [120 SCt 1851, 1853-55;146 LEd2d 826] created a Hobson's choice for the defendant: either reveal the prior conviction on direct examination and waive the right to appeal or wait for the prosecutor to reveal the prior and risk having the jury assume that the defendant was attempting to hide the prior conviction from the jury. In view of this dilemma, it would be unfair to the defendant to allow the jury to draw an adverse inference against the defendant who chooses to preserve his or her right to appeal. (See FORECITE National™ 300.1.12 [Due Process: Exercise Of One Constitutional Right Must Not Be Conditioned On Waiver Of Another]; see also FORECITE National™ 300.1.10 [Due Process: Right To Balanced Instruction].)

    Accordingly, an explanatory and limiting instruction should be given on request.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

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PRACTICE NOTE:  Receipt of stolen property is not, per se, a crime involving dishonesty or false statement for the purposes of impeachment under FRE 609(a)(2). Therefore, such a conviction cannot be admitted under subsection (2) unless the trial court inquires into the facts underlying the prior conviction and determines that the crime actually involved deceit or fraudulent conduct. (U.S. v. Foster (9th Ci. 2000) 227 F3d 1096, 1100 ["Even if one knowingly receives stolen property, that transaction is not the original act that deprived the rightful owner of his or her property and, in many cases, it can be accomplished without any misrepresentation or deceit on the part of either the giver or the receiver]; see also United States v. Ortega (9th Cir. 1977) 561 F2d 803; United States v. Brackeen (9th Cir. 1992) 969 F2d 827, 830.)

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    27.3.2.8    Impeachment Of Defendant By Prior Conviction:  Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 1.06.

See also 1st Circuit Pattern Jury Instructions - Criminal 2.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.11.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.05A.

See also 7th Circuit Federal Jury Instructions - Criminal 1.03.

See also 7th Circuit Federal Jury Instructions - Criminal 3.05.

See also 8th Circuit Model Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 2.16.

See also 8th Circuit Model Jury Instructions - Criminal 3.04.

See also 9th Circuit Model Jury Instructions - Criminal 1.8.

See also 9th Circuit Model Jury Instructions - Criminal 3.9.

See also 9th Circuit Model Jury Instructions - Criminal 4.6.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 5.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.2.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.4.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.5.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 6.6.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 23.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 41.